As the election gets closer, the divide between candidates has never been greater — for the future of immigration, the choice could not be clearer. Although immigration hasn’t dominated the election cycle like it did in 2016, the issue has been central to Trump’s governing agenda: the Trump administration has enacted more than 1,000 restrictive immigration policies over the past four years. And at the final debate, the candidates’ starkly divergent visions for immigration policy took center stage.
Biden committed to delivering a legislative path to citizenship and prioritizing Dreamers in that effort; he expressed remorse for the Obama Administration’s record on deportations. Trump defended family separation by claiming that separated kids “are so well taken care of” and asserted that those who show up for asylum hearings have low IQs.
On Tuesday, November 3, voters will choose between these distinctive futures. In the meantime, read about this month’s immigration developments and what a Biden Administration would mean for immigration.
1. Supreme Court to consider challenges to three signature Trump policies
The Supreme Court agreed to take up three cases involving the Trump Administration’s restrictive policies against a politically volatile backdrop. Amy Coney Barrett’s highly controversial confirmation just days before the election fundamentally changes the composition of the Court and raises concerns that immigrants, among others, will suffer the consequences.
Nonetheless, the American people will ultimately decide the fate of these cases: they all deal with executive policies that would almost certainly be mooted or reversed under a Biden Administration. However, if Trump is reelected, he will likely prevail before the 6–3 conservative majority Court that includes three of his own nominees.
Here’s what’s at stake:
Remain in Mexico
Since January 2019, more than 60,000 asylum seekers have been turned away at our border as a result of Trump’s Remain in Mexico policy, which requires asylum seekers to await hearings on the Mexican side of the border. In March, all asylum hearings were suspended indefinitely out of concern for coronavirus; they have not yet resumed. The policy, in conjunction with other restrictions, has effectively ended asylum in the United States. It is a complete abandonment of our legal and moral obligation to accept those seeking protection.
As of May 13, asylum seekers forced to wait in Mexico have suffered at least 1,114 cases of murder, rape, torture, kidnapping, and other violent assaults. Just one percent of those in the program have been granted asylum or other legal relief admitting them into the United States.
Earlier this year, a federal judge blocked the program nation-wide, but the Supreme Court put that injunction on hold and now it’s back on their docket. The case isn’t scheduled until 2021 and will be dropped if Biden prevails this Tuesday.
Funding for the border wall
The Court agreed to review President Trump’s decision to divert funding from the Department of Defense to pay for the construction of the border wall. Because Congress, not the president, controls government spending, the reallocation of $6 billion (more than triple what Congress authorized for the wall) led to a partial government shutdown in early 2019. The case won’t be heard until 2021.
Excluding undocumented immigrants from the census
In July, President Trump directed the Census Bureau to subtract undocumented immigrants from the population data used to reapportion seats in the House of Representatives (every ten years, the 435 seats in the House are reallocated based on updated census data). Because Trump’s earlier attempt to add a citizenship question to the census was struck down, the president asked the Bureau to use other databases to estimate the number of undocumented people within each district.
Lawsuits were immediately filed: the 14th amendment requires that the districts be drawn based on the total number of “persons” — not citizens — who live there. A lower court blocked the memo’s implementation last month, but the administration appealed directly to the Supreme Court.
If realized, the policy would further contribute to the overrepresentation of whiter, more rural states: California, Florida, and Texas would lose seats to Alabama, Minnesota, and Ohio. It is a blatant attempt to concentrate political power in Republican districts at the expense of immigrant communities.
The case is scheduled for November 30 — and will therefore be considered regardless of the election outcome — but a Biden Administration would likely still be able to decide against implementing the practice.
2. The parents of 545 children separated at the border are still missing
In 2018, a federal judge struck down the Trump Administration’s “zero tolerance” family separation policy and ordered the families to be reunified. But that ruling did not cover more than 1,100 families who were separated when the policy was in its infancy and still technically a “pilot program.” The judge subsequently ordered all of those families to be reunified in 2019. Earlier this month, however, court documents revealed that the parents of 545 children are missing. Three years after these families were ripped apart, advocates are still trying to track down parents — an estimated two-thirds of whom have since been deported to Central America.
The government’s poor record keeping during family separation and reluctance to reveal the scope of the damage leaves advocates with little to go off of — sometimes just a name and a country. And because so much time has passed since the separation, the information is often outdated.
For some, the separation may be permanent. The harm done by the family separation policy will long outlast this administration.
3. ICE fast tracks deportations for undocumented immigrants
This month, ICE took the unprecedented step of authorizing the deportation of undocumented immigrants without court hearings if they are unable to prove — on the spot — that they have been in the country for two or more years prior to their arrest.
The current practice goes far beyond the previous policy, which was limited to migrants who were arrested within 100 miles of the border and couldn’t demonstrate they had been in the country for more than two weeks. The new policy was quickly blocked by a federal judge — but this June, the DC Court of Appeals lifted the injunction and opened the door for ICE to resume and expand the practice.
ICE officers are now able to circumvent a severely backlogged court system and swiftly remove immigrants without any due process. This policy gives enormous power to frontline officers who have broad discretion as to how aggressively they carry out the policy, opening the door to extreme abuse. Despite the fact that the vast majority of undocumented people have lived in the U.S. for more than two years, the ability to conclusively demonstrate that in a street-level encounter is a daunting challenge.
4. Guatemala sends back thousands of Honduran asylum seekers headed toward the United States
Almost 3,500 Honduran asylum seekers headed to the United States were turned away by the Guatemalan government this month after President Giammattei said the group posed a risk of coronavirus transmission. Within 36 hours, 2,065 Hondurans were deported and most others were forced to turn back; Mexico quickly reinforced its southern border with hundreds of immigration agents and military troops to threaten those that continued north.
Mexican President Andrés Manuel Lopez Obrador and many others have questioned the timing of the caravan: just one month before the presidential election, many suspect that hope for a new, more sympathetic administration is fueling the most recent wave of asylum seekers. If Biden is elected, there will almost certainly be additional waves of migrants in the coming months; the administration must be prepared to respond with thoughtful, humane policies.
5. ICE raids sanctuary cities and advertises arrests as part of Trump’s reelection campaign
ICE announced that the agency had made 170 arrests during an enforcement operation targeting ‘sanctuary cities.’ Arrests were reported in Denver, Seattle, New York, Baltimore, Washington, and Philadelphia. The operation does not represent a significant increase in ICE activity; it is simply an election-eve ploy to advance President Trump’s false narrative that “Democrat-led” cities are lawless and dangerous.
Despite diminished visibility given the historic crises facing the country, our colleagues at the Immigration Hub find that Trump’s reelection campaign is still very much focused on immigration. This time, xenophobic content is fed directly to staunch Trump supporters and swing voters alike via targeted social media ads — the campaign has spent over $7 million on anti-immigrant Facebook ads alone. In Philadelphia, ICE leadership promoted “Operation Rise” and villainized Democratic leaders who have created sanctuary jurisdictions. And along Pennsylvania highways, billboards advertise sanctuary city raids and depict undocumented immigrants as violent criminals. The 2016 playbook is in effect, albeit largely obscured from mainstream media.
6. ICE spent more than $20 million on expanding detention after Congress told them to scale back the system
In February 2019, Congress mandated that ICE decrease its detention population. An investigation by Citizens for Responsibility and Ethics in Washington (CREW) revealed that the agency has since spent more than $20 million on new contracts to fund multiple prisons in Louisiana. Much of that money is going to LaSalle Corrections, a private prison company notorious for human rights abuses.
Not only did ICE blatantly violate a congressional mandate, they have unconscionably continued to fill detention center beds in the midst of an ongoing pandemic, with devastating consequences: more than 6,900 detainees have contracted the virus and eight have died.
7. Hope for a better future
The past four years have been grueling — for Americans writ large and immigrant communities in particular — but next week’s election represents a long-awaited opportunity to repair some of the damage done and imagine a better future for immigration. In that vein, we wrote The Cost of Citizenship Denied — a policy series that investigates how legalizing the undocumented would advance more than just immigration policy.
A Biden Administration opens the door to realizing a path to citizenship and much more. Here’s hoping that all of our efforts bear fruit next Tuesday and deliver the change America desperately needs.